No Freedom without Oak Flat

Author: Jack Dowd, PPL Fourth Year, Class of 2025

This Op-Ed examines a recent lawsuit filed by an Apache legal group against the U.S. government’s transfer of Oak Flat, an Apache religious site, to a copper mining company for excavation. I focus on the Supreme Court of the United States' definition of a “substantial burden” on religious exercise, which is key to the outcome of the case. I argue that the Court’s definition fails to capture certain intuitions about what it means to be free to exercise a right. I use a distinction made in political philosophy between “formal” and “substantive” freedom to draw out said intuitions. Read on to learn about why the destruction of a religious site should be considered a substantial burden on religious exercise.

Key words: Religious Freedom, Oak Flat, Substantive Freedom

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The Ninth Circuit Court of Appeal’s special 11-member “en banc” panel recently heard a challenge to the transfer of “Oak Flat,” an Apache religious site and the world’s third-largest deposit of copper ore, from the U.S. government to Resolution Copper, a copper mining company. “Apache Stronghold,” an Apache legal group, filed a suit to prevent the transfer because of Oak Flat’s religious significance to the San Carlos Apache people. The Ninth Circuit ruled 6-5 in favor of the U.S. Government, the majority opinion stating that Apache Stronghold was “unlikely to succeed on the merits.” Essentially, the Court believed that the group's religious freedom challenge would likely fail, and therefore the Court would not grant an injunction to prevent the transfer of property (Snow et al.). The group is now appealing the case to the U.S. Supreme Court (Becket).

For context, in 2014 a last-minute rider was attached to a must-pass defense bill that ordered the transfer of Oak Flat to Resolution Copper, a foreign-owned mining company. The proposed mine is projected to create a 2-mile wide and 1000-foot-deep crater, effectively destroying Oak Flat, and making the Western Apache’s usage impossible (Becket). The Western Apache people’s religious beliefs and practices are tied to the land, and Oak Flat has “paramount significance for prayer and sacred ceremonies.” Many of the Apache people’s important religious practices must take place at Oak Flat: the coming-of-age Sunrise Ceremony for Apache women, sweat lodge ceremonies, and gathering and usage of sacred plants, animals, minerals, and waters (Becket).

The members of the Ninth Circuit disagreed on whether the potential destruction of Oak Flat is rightly considered a “substantial burden” on religious practice. If there is a substantial burden in this case, then Apache Stronghold could win on religious freedom grounds. It might seem obvious that the destruction of the site would substantially burden religious practice, but the Supreme Court’s precedent suggests otherwise. In Lyng v. Northwest Indian Cemetery Protective Association, the Supreme Court ruled that for the state to be found to “prohibit” the free exercise of religion it must either coerce individuals into violating their religious beliefs, or penalize religious activity by denying individuals equal rights, benefits, or privileges enjoyed by other citizens (Lyng, Section 3).

The Court reasoned that the government would need to incidentally burden religious practice to achieve goals in the public interest such as public health, welfare, or safety. On this rationale, the government may justifiably make it more difficult to practice religion without violating the constitutional guarantee of religious free exercise. If a person is not coerced against their beliefs or discriminated against, then their religious freedom has not been violated (Lyng, Section 3). The Ninth Circuit ultimately ruled against Apache Stronghold because under Lyng’s theory, the destruction of a religious site is not a “substantial burden.” Destroying Oak Flat does not coerce the Apache people to act against their beliefs nor does it discriminate against them in any special way (“Apache Stronghold v. United States”).

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Intuitively, the idea that the destruction of Oak Flat does not equate to a substantial burden seems incorrect. I argue that the source of this disconnect is that the Supreme Court’s underlying understanding of freedom is too constrained.

In political philosophy, a distinction is often made between “formal” freedom and “real” or “substantive” freedom. Formal freedom refers to non-prohibition by the state or other actors, meaning no actor forbids or commands an individual to do a certain action (Sweet, 3). In contrast, real freedom entails that an individual has all the required means to achieve a certain action or pursue a certain state of affairs (Robeyns et al.). For example, an individual in a wheelchair may not be legally prohibited from entering a building, but if there is no entrance ramp then they are not free to enter because they lack the means of doing so. Real freedom can be described as “exercisable formal freedom,” meaning individuals have the capacity to do what they are legally permitted to do (Sweet, 7).

The Court in Lyng implicitly relies on the formal conception of freedom when defining what counts as a prohibition of religious freedom: If the government neither forbids religious practice nor compels action against one’s beliefs, then there is no violation. Under this theory, the government can disturb a believer’s means of practicing their religion without technically prohibiting them at all. I believe this underlying formal conception of freedom fails to capture important intuitions about what it means to be free to exercise a right. Let us consider an example where the government closes a road for repair that someone typically takes to a religious site, adding 10 minutes to their commute. This would not be a prohibitive state action under the definition established in Lyng. This makes sense: the state must be able to incidentally burden religious belief and it cannot account for every minor instance in which it burdens someone's means to exercise their religion. However, when you consider instances in which the government is directly responsible for substantially debilitating an individual’s means to exercise their religious belief, the definition seems to fall superficially short. The transfer of Oak Flat and its subsequent destruction would permanently destroy the Apache people’s religious connection to this specific site, and this connection is geographically restricted. In that scenario, the Apache people will not be “really” free to exercise their religion in an important sense because the government’s action will have directly and completely removed their ability to effectively exercise their constitutionally granted freedom. The Apache people will remain formally free to exercise their religion, but such freedom cannot be acted upon because the state will have permanently severed their ability to conduct necessary religious exercise at Oak Flat.

Some might suggest that expanding the definition of a substantial burden would force the state to defeat less “vital” or “serious” religious freedom claims. However, I suggest that a distinction should be made between incidental burdens that make religious practice more difficult and direct burdens that make religious practice effectively impossible. Only the latter should rise to the level of substantial burdens on religious freedom. This standard should be stringent; however, I believe the transfer of Oak Flat is an example of a government action that should be considered a substantial burden that currently falls outside the definition suggested by Lyng.  Because the religious practices in question are tied to Oak Flat itself, allowing the destruction of the site would make free religious exercise impossible. The Apache people’s claim, on account of the directness and severity of the action, should not be ruled out before the government proves the constitutionality of its action.

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Jack is a fourth year in the PPL program. After graduation, he plans to attend law school to pursue a career in plaintiff-side litigation, the criminal justice system, or a regulatory agency.

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Works Cited

"Apache Stronghold v. United States." The Becket Fund for Religious Liberty. The Becket Fund         for Religious Liberty, n.d. Web. Jun. 06, 2024

“Apache Stronghold v. United States.” UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2024, cdn.ca9.uscourts.gov/datastore/opinions/2024/03/01/21-15295.pdf.

Colby, Ryan. “Apache Stronghold Will Ask Supreme Court to Save Oak Flat.” Becket, 14 May 2024, www.becketlaw.org/media/apache-stronghold-will-ask-supreme-court-to-save-oak-flat/.

“Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).” Justia Law, 1988, supreme.justia.com/cases/federal/us/485/439/.

Robeyns, Ingrid, and Morten Fibieger Byskov. “The Capability Approach.” Stanford Encyclopedia of Philosophy, Stanford University, 10 Dec. 2020, plato.stanford.edu/entries/capability-approach/.

Snow, Anita, and Matthew Daly. “A US Appeals Court Ruling Could Allow Mine Development on Oak Flat, Land Sacred to Apaches.” AP News, AP News, 2 Mar. 2024, apnews.com/article/apache-stronghold-ninth-circuit-mining-633633afcc0d348913bf06d0ae8228d7.

Sweet, Jake. “An Explanation of the Formal-Substantive Freedom Distinction ...” ScholarWorks @ Georgia State University, 2022, scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1340&context=philosophy_theses.